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December 6, 2018, Trial News

More companies reject forced arbitration of sexual harassment claims

Mandy Brown

In November, Google, Facebook, eBay, and Airbnb announced that they would no longer require employees to submit to forced arbitration when bringing workplace sexual harassment claims. The companies joined Microsoft, Uber, and Lyft, which have already ended forced arbitration of these claims. As the public continues to call for change in how sexual harassment cases are handled, it remains to be seen whether other employers—and Congress—will take similar actions to protect survivors and employees.

In November, Google, Facebook, eBay, and Airbnb announced that they would no longer require employees to submit to forced arbitration when bringing workplace sexual harassment claims. The companies joined Microsoft, Uber, and Lyft, which have already ended forced arbitration of these claims. As the public continues to call for change in how sexual harassment cases are handled, it remains to be seen whether other employers—and Congress—will take similar actions to protect survivors and employees.

“The hallmark of forced arbitration is secrecy,” said Montclair, N.J., employment law attorney Nancy Erika Smith, who has fought against the forced arbitration of workplace sexual harassment claims and who represented former Fox News anchor Gretchen Carlson in her sexual harassment suit. “But ending sexual harassment and abuse in the workplace requires that these allegations be brought into the light of day so that perpetrators can be held publicly accountable for their actions. Otherwise, you allow the cycle to continue, putting more employees at risk.”

The secrecy danger that Smith describes motivated a worldwide walkout that 20,000 Google employees staged in early November to protest the company’s handling of sexual harassment allegations after a New York Times report revealed that the company had concealed prior allegations against company leaders. Among other demands, the Google employees called for an end to the forced arbitration of employee sexual harassment claims. In response, the company agreed to change its policy. Facebook, eBay, and Airbnb quickly followed suit and announced similar changes shortly thereafter. In a public statement, eBay said that it “takes great pride in fostering an inclusive culture . . . [and w]e’ve adjusted our existing employee policy regarding sexual harassment claims to better reflect and encourage eBay’s values of being open, honest and direct.”

Since the #MeToo movement went viral in 2017, companies have faced increasing public pressure to remove sexual harassers from the workplace and to create transparent and open processes when handling sexual misconduct claims. Ending the secrecy of forced arbitration is seen as a key part of these efforts, yet no federal protections have been enacted, despite calls for action at every level. In February, for example, all 56 U.S. attorneys general, representing every state and territory, called on Congress to ban the practice.

Smith observed that while government actors have failed to protect workers, members of the #MeToo movement and others have stepped in. “By acting collectively, in a non-union setting, employees have successfully pressured these companies to act. These recent announcements show their power and the power of the press at a time when Congress and the federal courts have repeatedly let workers down. The public is tired of secret proceedings that leave serial harassers in positions of power and operate at the expense of victims, and the changes we’re seeing now directly result from that.”